Florida Court Rules Against Religious School Vouchers

By GREG WINTER

Published: August 17, 2004

A Florida appeals court ruled yesterday that a voucher program for students in failing schools violated the state's Constitution because it sent public money to religious institutions.

In a 2-to-1 decision, the First District Court of Appeal in Tallahassee found that the ''vast majority'' of students with vouchers used them to enroll in the kind of ''sectarian institutions,'' or religious schools, that are barred from receiving state money under the Florida Constitution.

Most state constitutions prohibit or restrict state money from being spent on religious institutions, and that remains one of the principal legal barriers to the widespread adoption of school vouchers.

The United States Supreme Court has said the nation's Constitution does not bar school vouchers. But it also ruled this year that states that gave money for secular education were not compelled to support religious instruction as well, essentially leaving the issue to state courts.

That has placed a focus on the battle over Florida's voucher program. Not only does it take place in a populous state, but it is also one of the first legal contests since the Supreme Court affirmed the role of state constitutions in deciding the fate of vouchers.

''The Florida case is really the bellwether that everyone is looking at,'' said Mark E. DeForrest, an assistant professor at Gonzaga University School of Law, whose research was cited by the Florida appeals court. ''It's something that almost all the other states will look at closely. They're not going to be bound by it, but they're definitely going to be influenced by it.''

Gov. Jeb Bush, a Republican who has proposed using vouchers to ease crowding in public schools, said he would appeal the decision. Unless it is overturned by the Florida Supreme Court, Mr. Bush warned, the ruling could invalidate other scholarship programs in the state, including those serving college students and children in special education.

''Today, thousands of children attend private schools, including hundreds of nonreligious schools, under Florida's choice programs,'' the governor said in a statement. ''Their parents have chosen these schools, and we should honor that choice.''

The governor's office said it expected students to continue receiving vouchers while the case moved forward on appeal, prompting critics to attack the governor as basing his decisions on politics, not law.

''The unconstitutionality of the program is a fatal flaw that the governor has been aware of from the beginning,'' State Senator Frederica Wilson, the Democratic whip, said.

Though the focus of the case has been a relatively straightforward provision of the state's Constitution that prohibits spending on religious institutions, directly or indirectly, the efficacy of Florida's voucher program has been less clear.

Passed in 1999, the Florida Opportunity Scholarship Program allows any student who attends a public school considered failing because of low student test scores to switch to a better public school or use a voucher for tuition at a private institution, religious or otherwise.

Researchers at the Manhattan Institute, a conservative policy group, contend that the threat of vouchers has placed so much pressure on poor-performing schools that they have made the greatest gains on state tests. ''If the voucher programs in Florida were to go away, it would be harmful to the educational outcomes to students in Florida,'' said Marcus A. Winters, a research associate at the institute.

Critics of the program condemn the research as sloppy and unsubstantiated, arguing that vouchers have failed to help students in most places they have been tried.

''Vouchers don't really provide significant opportunity for low-income kids,'' said Elliot Mincberg, vice president and legal director of the People for the American Way Foundation, which has long opposed vouchers. ''They drain money and resources from sometimes the most needy public schools.''

In its decision, the Florida court acknowledged that the voucher law barred religious schools from forcing voucher students to pray or ''profess a specific ideological belief.'' And the court said it recognized the need to do something for ''children trapped in substandard schools.''

''Nevertheless,'' the majority ruled, ''courts do not have the authority to ignore the clear language of the Constitution, even for a popular program with a worthy purpose.''

The constitutions of some other states, like Michigan's, are just as stringent, Mr. DeForrest said. Others are much vaguer, the legacy of a 19th-century effort to stem the growth of Roman Catholic schools without infringing upon the religious sentiment of Protestant ones.